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Melgarejo v. New York College of Podiatric Medicine

United States District Court, S.D. New York

April 28, 2014




On August 31, 2012, plaintiff Dr. Hernan Melgarejo ("plaintiff"), proceeding pro se, filed this action against defendants the New York College of Podiatric Medicine ("NYCPM"), Dr. Kevin Jules ("Jules"), Dr. Robert Eckles ("Eckles"), and Dr. Laurence J. Lowy ("Lowy") (collectively, "defendants"), alleging that defendants discriminated against plaintiff while he was a student at NYCPM. (ECF No. 2.) Plaintiff alleges that defendants - in particular NYCPM and Jules - "racially profiled" plaintiff and in doing so, prevented him from the opportunity to obtain a podiatric residency. (Second Amended Compl. ("Compl.") at 3, Nov. 4, 2013, ECF No. 20.[1])

On September 9, 2013, plaintiff filed an amended Complaint, and on October 28, 2013, an initial pretrial conference occurred. (ECF No. 19.) On November 4, 2013, plaintiff filed a second amended Complaint (ECF No. 20), and on January 9, 2014, defendants filed a motion for summary judgment (ECF No. 30). Despite being given multiple extensions of time (ECF Nos. 37, 39, 43), plaintiff failed to submit an opposition to defendants' motion - though plaintiff did submit a variety of other materials. (ECF Nos. 38, 40, 41, 42, 44.) On March 11, 2014, defendants filed papers in reply. (ECF Nos. 45, 46.)

For the reasons set forth below, the Court hereby GRANTS defendants' motion for summary judgment.


The facts below are either undisputed or viewed in the light most favorable to plaintiff. Plaintiffs submissions are read liberally because he is proceeding pro se.

In 2006, plaintiff, who is of Hispanic origin, enrolled as a student at NYCPM. (Statement Pursuant to Local Rule 56.1 ("SOF") ¶ 1, Jan. 9, 2014, ECF No. 35.) The NYCPM is a full-time, four-year program, but with provisions made for students to complete the program in up to six years. (Id. ¶ 3.)

To receive a license to practice podiatry, New York State imposes the following requirements: (1) graduate with a Podiatric Medical Degree; (2) successfully complete a post-graduate podiatric residency; and (3) pass Parts I, II, and III of the American Podiatric Medical Licensing Examinations ("APMLE" or "Boards"), which are administered independently of defendants by the National Board of Podiatric Medical Examiners. (Id. ¶¶ 7-9)[2]

On July 9, 2008, plaintiff passed Part I of the Boards. (Id. 12.) Plaintiff has attempted to pass Part II of the Boards on eight occasions; he has not yet passed Part II. (Id. ¶¶ 15-16; Jeffrey A. Kehl Reply Affidavit in Support of Motion for Summary Judgment ("Kehl Reply Aff.") ¶ 5, Mar. 11, 2014, ECF No. 45; 2/24 Ltr., Feb. 24, 2014, ECF No. 41.) According to plaintiff, defendants failed to sufficiently prepare plaintiff for the exam because he is Hispanic. (Compl. at 5; 3/7 Ltr. at 1, Mar. 7, 2014, ECF No. 44.)

Plaintiff alleges that while a student at NYCPM, he witnessed a number of minority students being "forced out" by NYCPM; plaintiff contends NYCPM did not force out any white, Jewish students. (Compl. at 4.)

Between plaintiffs second and third years at NYCPM, plaintiff alleges that a NYCPM clinician, Dr. Khan, told plaintiff and another Hispanic student to "be careful" of defendant Jules because "if he likes you, you will pass [and] if he does not[, ] you will not." (Compl. at 4.) Plaintiff later understood this to suggest that Jules discriminated against students of Hispanic origin. (Id.)

In late September 2009, plaintiff contends he was advised - with only three days' notice - that he needed to take his senior surgery exam. (Id. at 5.) Plaintiff states that he requested but was denied additional time to prepare. (Id.) During the oral portion of the exam, plaintiff states that he provided the same answer as a white classmate to one of the questions posed, yet plaintiff scored a one out of 20 while the white classmate allegedly scored 15-17 out of 20. (Id.) Upon learning that he failed both the oral and written portions of the exam, plaintiff immediately contacted Jules to see what could be done to remedy the issue, but Jules stated that nothing could immediately be done. (Id.)

Plaintiff eventually was given a second opportunity to take his senior surgery exam, but again failed. (SOF ¶ 34.) NYCPM protocol does not permit a student to repeat a failed course more than once without an appeal to the Committee on Academic Performance and Promotions ("CAPP"). (Id. ¶ 36.) Plaintiff appealed his failing grade to CAPP and was granted permission to retake the course in the summer of 2010. (Id. ¶ 37.)[3]

In the middle of plaintiff's summer senior surgery course, plaintiff requested to be withdrawn from the July rotation because he "was not feeling well and had to fly to Florida for [a] residency interview." (Compl. at 6.) While the record is not entirely clear on this point, it appears that Eckles refused to grant plaintiffs request - which plaintiff contends is because "[a]ll he [Eckles] cared about was having a body, [at] no labor cost, to cover the[] rotation" - but plaintiff skipped work and went to Florida anyway. (Id.)[4] Plaintiff nonetheless ultimately passed the course and received his degree in September 2010. (SOF ¶ 39.) Although plaintiff contends ...

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